Last week we received the following letter from SRL Jan Steen. As you will read below, Jan had just concluded a seven-year legal action as a SRL. He sent his letter to be shared with the NSRLP Advisory Board, and below three of our Board members write back to Jan, acknowledging the difficulty and frustration of the SRL experience and describing how NSRLP is committed to working on answers in collaboration with other justice system players.
We are publishing Jan’s letter and personal responses from individual Board members to underscore NSRLP’s commitment to engaging with the public and advocating for the inclusion of a consumer voice in justice system reform. The conversation below just scratches the surface of what could be achieved from a real public dialogue on A2J in Canada.
Dear Julie and Sue,
This morning I received the NSRLP’s 2014 Annual Report. Thank you.
Also this week, exactly seven years to the day since I first signed a contract with the firm who were to become the defendants in my lawsuit, I signed a final release. They clearly won the battle. Reflecting on my seven years pre-occupation, I am still groping to understand what I thought I was fighting for – justice? I had a telephone conversation with a respected US lawyer some months ago. He told me: “Jan, the courts are not about justice.”
NSRLP Advisory Board member Sherry MacLennan writes:
Dear Jan,
I am sure you were fighting for justice – that is a powerful motivator and an important value. A belief in the importance of justice keeps many of us motivated in our work to make the system better for everybody – not just those who have access to skilled litigators. While I believe the courts can be about justice, there are many constraints– complex and historical rules of court and of evidence that while intended to help achieve justice, can undermine it when one is self-represented (you talk about this problem below). Justice is more likely to be achieved when the playing field is even.
It seems to me that when you are on your own, the playing field is not even. That is why we are working to increase real and practical assistance to SRLs both at the Legal Services Society and at NSRLP.
Sherry
(Sherry MacLennan is the Director of Public Legal Information and Applications at the British Columbia Legal Services Society)
Jan continues…
I have been trying to make sense of the obsession that kept me so doggedly tearing away at these matters, in order by making a sensible account of the thousands of hours, the financial costs, and the myriad emotions I now realize were all for naught; so that I might recover the sanity I require in order to move on. I had been advised on countless occasions, both by my close family as well as friends, that life is short; that I was wasting my time and energy. An early ‘closure’ should have been based on such insight and wisdom. I appreciate some of you may see me as a SRL with some screws loose…but really my question to you is the one I believe shared by many other SRLs – as we doggedly persist, has nothing been gained? Should I never have begun this journey? And is that what we should be telling other people about the justice system in Canada?
Jennifer Muller, NSRLP Advisory Board member writes:
Dear Jan,
You are not alone in your attempt to make sense of your journey into our legal system. I think it is common for SRLs to try to understand what led them to venture into our legal system, invest everything they have in their personal quest for justice, only to find themselves emotionally and financially depleted and needing to make sense of the experience.
I believe you have gained something that is more valuable than recouping financial costs or the lost hours spent trying to desperately fight for something that was dear to you. The very sanity that you want to recover now that your case is “over” may have been irrevocably lost if you had never pursued your legal matter. How could you go to court without a lawyer? Why would you put yourself through such anguish and difficulty? Why are you doing this? These are common questions that SRLs face from their families and friends and the answer to these questions is most often: How could I not?
You couldn’t turn away from this legal case because it mattered deeply to you and you were willing to pursue justice at all costs. Perhaps the outcome of the legal battle is not nearly as important as the journey. The story of your personal journey through our legal system as a SRL is of value and is evidence that the justice system in Canada is one in dire need of change.
Jennifer
(Jennifer Muller is a former SRL and a District Counsellor for the North Vancouver School Board)
Jan continues:
My experience has taught me that before there is “commitment to advancing access to justice in Canada” the “urgency of system change” must occur at the very core of the system. For me this means that before there is better access to procedure, we must make sense of the Rules. Any system created and governed by its employed participants is bound to raise barriers for outsiders. Over the last seven years I have experienced numerous examples of permitted anomalies and what seemed to me to be apparently illegal behavior by the legal system. In the end, I feel that the system managed to devour me and then spit me out, after a tedious and long-drawn game.
Sincerely yours,
Jan Steen
Bill Bogart, NSRLP Advisory Board members writes:
Dear Jan,
Your comments capture an ongoing tension in the justice system. On the one hand, we want the courts and their procedures to be open to all at low cost. On the other we want the procedures to promote thorough investigation of the issues and all relevant and reliable evidence to be placed before the judge deciding the case. Those two goals are often incompatible. And you are right: the balance shouldn’t be determined only by those beholden to the system.
Rules reform is a big part of enhancing A2J in Canada. We have struggled with this for too long without real results and now SRLs like yourself are asking that we do better. I can guarantee you that the NSRLP will keep pushing to have the concerns you express – which we hear a lot – heard and properly responded to in these debates.
Bill
(Professor Bill Bogart is Distinguished University Professor and Professor of Law at the University of Windsor)
I totally relate to and and sympathize with Jan’s struggle with our legal system.
For some reason I was brought up to think the legal system was about justice. Sadly, as an SRL I found out that being right, and being able to prove it in cour,t are two very different things.
I guess I thought written documents I submitted with my case would be read by the judge. I found most judges /Chairs coming to the court stating: ‘Well I haven’t read any of your documents”‘, – which I found an astonishing statement from someone in charge of deciding a very important issue which could have serious implications on my life and finances. Wha business person would come to a meeting starting off with well I have no idea what this is about. I found out judges rely almost entirely on live testimony under oath, and you need cross-examination skills and several expert witnesses to prove everything. What you submit in expert reports, for example, seems to carry little weight.
Why self-represent then? Because of the arithmetic. If the amount your’re seeking is $25,000, and litigation lawyers charge $650 per hour, you do the math. After paying a lawyer you’ll have no money to fix the problem you’re suing to resolve. A prominent lawyer friend told me ‘there’s no justice for amounts under $100,000′.
Why not increase the Small Claims Court maximum to $50,000 as they’ve done in Alberta from the current $25,000 in Ontario? Small Claims Court is no picnic either, but at least it has a good website written in clear simple language, and a location you can go to ask basic questions about the rules.
I come from a family of lawyers and judges, most of them passed away now, but I was surrounded by legal talk most of my life, and I grew up believing in our justice system. I now believe the best advice I could have gotten was that of a U.S.Supreme Court Justice to his law clerk: “We’re not in the justice business, we’re in the legal business.’
U.S.Supreme Court Justice to his law clerk: “We’re not in the justice business, we’re in the legal business.’
YES the US Supreme Court Judge exemplifies the PROBLEM – the JUDGES are the problem.
The judges have lost sight of the fact that the legal system is supposed to provide JUSTICE.
Today’s search on CANLII.org for the word justice found 443,729 documents.
e.g. The Supreme Court of Canada on S. 24(2) of the Charter and the importance of the repute of the administration of justice.
What a disconnect!
– the courts continually TALK about JUSTICE and “good conscience”
– all the while the judges “wash their hands in innocence” and pontificate “We’re not in the justice business, we’re in the legal business.’
The judges want you to believe that the courts are there to administer justice.
Let your intelligence serve and guide you well!
The above summarizes extremely accurately what the un represented litigant goes through, feels, experiences emotionally, financially, morally. Now that we all seem to agree , whether you are on the litigant side or the legal side ……. high time to reform … and cannot take forever …whether or not the service industry has lost is meaning, is weakening at the roots or has changed its social significance, everyday consumers continue to experience breaches in contracts, commitments , promises and the numbers are growing. Something must be done and as the sentence “the balance shouldn’t be determined only by those beholden to the system” says it so well…how can it be done ????
I am also an unrepresented litigant,, one of the things that MUST happen in order for justice to actually return to the system , is the system must be open and available to all,, as a right. because it is, it should not bankrupt you to seek justice, and some judges actually look for ways to INCREASE awards to make the system even more unaccessable. this is wrong., if you are unrepresented, but for yourself, and it is not a level playing field, may I also assume that judgements of vexatious leveled at you would be just a way to keep everyone who has no lawyer out of court. one of the next and really critical things that must occur is that the people IN THE SYSTEM. lawyers judges, staff at the registries etc, must stop the criminal games of hiding files, refusing to attend examinations for discovery, refusing to produce what is actually part of the evidence for the court. stop falsifying evidence,, and statements of reliability. actually make some effort to ensure your affidavits are sworn truthfully. you know,, do your job.
if rules of court exist, and they do, if we read them, we should have some reliable way to ensure the court is actually following them,. right now, they do as they please, you may have rules,, but no one really follows them. especially with the self represented,, after all,, what can we do if you don’t
and there must be accountability. lawyers being self regulated is like the fox watching the hen house. it never has worked,, and it never will.
as to judges,, their legislated non accountability for practically everything is not acceptable. we need a civilian oversight body, much as the police got when we discovered their refusal to act responsibly
this concept of justice is a human right. and it should be fully funded., and not by us. by our government. it is our human right to be able to access the courts for whatever issue we have,, and it shouldn’t be contaminated as it is by corruption, greed and fraud.
it would be helpful if when we DO APPROACH THE COURT, the judge who hears our matter actually had some knowledge and or experience with it. you have no idea how many do not. so,, if some issues require land related issues,, make sure the judge hearing your matter, knows something about land issues..
same with family matters, same with expert witness reports and this little trick of going for summary judgements so no discovery is ever conducted,, this is a manipulation of the system where expert evidence is submitted. if expert evidence IS SUBMITTED and NOT CROSS EXAMINED, THIS IS NOT A LEVEL playing field. it is not legal and it is most certainly NOT just,. this must stop immediately. any evidence submitted by supposed experts, must always be available for cross examination, and for full discovery of documents, full transparency is a complete necessity. right now is a game of slight of hand. our current disclosure rules may exist, but I tried asking for them and got the fancy dance out the door of the court house.
in my case,, and I say with some safety, all cases, dealing with dna matters,, who let this #### into the court house without clinical trials, without standardized testing, and without a regulatory body at all. then add to that, no one in the courts, including judges can even read the reports! if you can read only the one line at the bottom of a report, you are not qualified to make a judgement regarding it. now as we are seeing the FBI has been OVERSTATING it scientific testing reliability for the last 20 years or more,, do you have any idea HOW MANY LIVES YOU HAVE DESTROYED!
mine is one of them. and as I say on my website, I now have scientific proof of the fraud. and the fact that this was allowed into court without any rules of court applying to it. even the rule of full disclosure,, this is fraud at its best. do something about this . you have made horses you know what of yourselves and of the legal system,
I am starting my journey as an Unrepresented homeowner. I think the term self represented gives the impression that I have my self to represent my best interest and that is not the case because no matter how much I read, or think I know, I still lack the fundamental skills to fight the big corporations and win. There is an inherent code that has changed. The code where everyone deserves a fair trial. As mentioned in the article you cannot have a fair trial if you are not on the same level as your opponent. This system will not work for the single income family, it will not work when middle class people are living paycheck to paycheck and it will certainly not work for the poor. The system only works when you can afford a lawyer. That privilege belongs to an elite club. Individuals that do not have to worry about retirement, their kids education, groceries, clothing for their kids etc; When a person has to go to court or a tribunal to fight for what is right and what they are entitled to and then they have to weigh that against all the other things they have to go without, it is a painstaking decision that often leaves families broken, along with the system that is suppose to be a right for everyone Canadian.
Although I much appreciate your posting of my serious concerns with our legal system, including the replies by several board members who discuss the need for an “even playing field,” the fact the “justice system is in dire need of change,” and to have our concerns “heard and properly responded to in these debates,” history of the human experience continues to prove that though we may voice our deepest concerns about man’s injustices, unless there is a concerted DEMAND and INSISTENCE for improvement, as is most often the case, while the complainers fade, the systems carry on as they are wont, while NOTHING changes. Only the strong survive. That rule always works. Since it is the law of Nature!
Although I much appreciate your posting of my serious concerns with our legal system, including the replies by several board members who discuss the need for an “even playing field,” the fact the “justice system is in dire need of change,” to have our concerns “heard and properly responded to in these debates,” history of the human experience continues to prove that though we may voice our deepest feelings about man’s injustices, unless there is a concerted demand and insistence for improvement, as is most often the case, while the complainers fade, the systems carry on as they are wont, while nothing changes. Only the strong survive. That rule always works. Since it is the law of Nature!
there is no funding from legal aid,, and the judicial system is not an even playing field for the self represented,, who are in record numbers simply being called vexatious and thrown out of court, no proper discloseur rules are being followed,, despite requests, and no discovery processes are allowed unless you actually have a lawyer. for dna labs, even if you pay and GET a lawyer to request the file,, it will be refused. the courts refuse to order the release of material to the self represented. I would be very interested in how sherry the legal society rep, sleeps at night. you have abandoned every pretense of justice, it is not just complex, it is being completely disregarded by your organization, and by the courts themselves. now if anyone would like to say how this is going to work, love to hear it,
yes indeed the word of the day here is ” SYMPATHIZE ” as no one can even imagine what it is to ” go through ” this system as an SRL ; only and strictly live experience can open your eyes and give rise to all the just comments above . Rightly or wrongly we have distinguished between SRL and un-represented. To us , the SRL is one who could ” be ” represented and for whatever reason, chooses not to but the un represented has no choice but to represent him or herself. for lack of funds to afford the pricey lawyer. Obviously not a professional conclusion but assists in understanding there IS a difference .. And why do we , SRL s all react the same way . There is merit to a universal ” reaction “, ” appeal “, ” feeling “. Worth a second look please to the legal professionals. Considering that seeking justice is an illusion and it is …not sure what the legal business is deemed to be but surely , no , deputy judges do not read the materials , simply ignore or override without explaining why the meticulously researched laws and precedents presented to support your case have no weight . And even if we can term individuals who can afford legal counsel as elite and being privy to perhaps a ” fair trial “, the practice of making deals between counsels ( repondent vs appellant ) is far too common to conclude that those who can pay may win. An offer to settle which is the goal of the day at a prehearing conference is to us but throwing out a crumb to keep you quiet and satisfied. Why is it consistently so difficult to prove that you did not get what you fairly and honestly paid for in our courts ?
the supreme court of Canada just released their decision on the ivan henry case, and he now has the right to sue for damages. he apparently spent his 27 years of incarceration filing appeal after appeal. none of which the courts paid one bit of attention to. I have had the same experience with the courts, they most arrogantly refuse to hear any pleas from the public for justice. it is about time they were held to account for this, hopefully this will be the start of good things, more and more people need to come forward to sue this crooked system for their criminal disregard for justice.
My appreciation goes out to Nicole, Naz, and bcaptijn for your serious responses. Any healing process is enhanced when others show their sympathy; so thank you. “How can it be done?” Nicole asks. It can’t be done if we shrug, accept, and quit. It can only be done if we set goals, persist, and see to it that our sensible demands are implemented. Together with Dr. Macfarlane’s conscientious group efforts and her ability to access the very professionals at the core of this matter and our SRLs relentless insistence on change, can the system > any system > be made to work justly. As has been mentioned, we must seek and implement a complete revision! And it starts at its core: The Rules! We must re-write the Rules, so there is no room for interpretation! We must revise the hiding behind ‘Jurisdiction!’ How many Motions are allowable? Is the present reliance on Case-Law, in fact, ‘just?’ How can it make sense to run a claim + counterclaim side by side? Justice is not a business; it can not be a game, or theatre, of who has the better argument, or more clout money. We must take the present criminal element out of it. This system, and others, do not represent a true democracy. All is hypocrisy! We must get on with changing it > now! Enough is enough.
From my perspective, I’d like to suggest to those readers who are willing to participate in these arduous efforts, to contact me (maybe through Dr. Macfarlane’s office) and help identify particular items that have baffled them; pinpoint areas of concern; discuss questionable responses from officers, or identify conflicting messages.
I’m in it for the long haul. Hey, what’s 7 years? If, together, we can turn this oily barge around, we may actually create a real democracy! Now wouldn’t that be a hoot :)> (?)
we are now preparing our next LAT appearance and we will indeed be contacting you to participate as you have indicated above once that pressure has subsided.
Looking forward; thank you so much Nicole.
I have come to the realization I can not quit now. Nothing has been achieved, other then that the system has won again. Preferably with others, but if not, I will go it alone and file a claim in Ottawa against the Attorney General’s Office. A malpractice suit? It is after all the Office of the Honourable Peter Gordon MacKay which is responsible for the Nation’s Courts’ behaviours and practices by its officers and their interpretation of the rules, our Rules!
http://www.justice.gc.ca/eng/csj-sjc/just/ > “Laws also balance individual rights with our obligations as members of society.”
Much is written that resonates well. It is ultimately in its adherence to practice where the truth of action and outcome are determined. So let us revisit what occurred, encapsulate those matters clearly, and compare that process with the rules as interpreted. In the doing, many questions will come to the surface, showing inequities were perpetrated. Hopefully this time, with a wider exposure, together with some better connected conscientious professionals the wayward ship can be forced into overhaul and hence allow for more equitable cruises in the future.
With nothing more important to do, now some FIVE YEARS hence, and a number of younger dear friends and associates dead, reflecting about the ‘meaning of life,’ while COVID is running rampant, I lapse in to a melancholic reminiscence and sojourn to find our above expressions!
Hmmm, other than ageing, has anything changed? …… In many ways much has changed, but it’s for the worst! Mankind is on a steady downward slope, with all its political global madness and mayhem running amok. It’s as if another Dark Ages has befallen us. Generations come and go, and as such, ultimately, we do what we do, and need to absorb the consequences. Only TIME will tell whether our species will manage to greed less, and discover its role within the equilibrium of existence, like all of life.